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TMI Blog2024 (11) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... but at the same time has accepted payment of central excise duty on the clearance made from the premises of EOU. When the appellant provided re-defined boundaries for amended registration in their application and basis the said application revised excise registration was issued, merely non mentioning of the specific plot number cannot lead to denial of credit - there are force in appellant s arguments that it is a settled law that registration of premises is not a pre-requisite for availing credit. It was held in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [ 2011 (9) TMI 450 - KARNATAKA HIGH COURT ] that ' In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law.' Also, the appellant s submission that substantial benefit of credit cannot be denied for procedural lapse is a settled preposition of law as has been held by various decisions including the Bombay High Court decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge, Advocate appeared for the Appellant Shri Mihir G Rayka, Additional Commissioner (AR) appeared for the Respondent ORDER RAMESH NAIR This appeal has been filed against the impugned Order-in-Original No.VLD-Excus-000-COM-050-16-17 dated 27-02-2017 passed by the Commissioner of Central Excise, Customs and Service Tax, Valsad Commissionerate. 1.1 The brief facts of the case are that the appellant is engaged in the manufacture of agrochemicals. In the year 2012 the appellant converted its 100% EOU into the existing DTA unit. Chronology of events during the said period is as under: a) On 24-12-2012 the appellant, then 100% EOU, sought permission from the central excise department to convert the 100% EOU into DTA. b) On 16-01-2023, the department issued no dues certificate basis which Deputy Development Commissioner, Kandla issued final exit order on 15-02-2013. c) On 18-02-2013 the appellant applied for surrendering the Central Excise Registration of EOU. The request was made to excise authorities to approve revised ground plan and to permit transfer of CENVAT credit of EOU unit balance to their existing DTA unit. d) Then after, on 26-02-2013, the appellant filed application before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting DTA unit situated at plot 306/3. b) He further argued that, even otherwise, it is settled law that there are no statutory provisions which prescribe that registration is mandatory for claiming the credit. He argued that taking registration under the Central Excise Act is not the pre-requisite condition for availing the CENVAT credit. c) He also argued that allegation that plot no. 143 was not mentioned in the amendment Form A-1 could at max be regarded as a procedural lapse or a technical breach which was duly capable of being rectified which was indeed also done w.e.f. 11.08.2013. He also pointed out it is not the case of the department that the credit in dispute is ineligible, but the denial is merely based on a technical ground of alleged non-having of registration under the Central Excise Act for which substantial right of credit should not be denied. 2.2 Submission for credit of Rs. 4,21,16,159/- a) He argued that the reliance on provision of Rule 10 of the CENVAT Credit Rules, 2004 has been misplaced for denying the credit of Rs. 4,21,16,159/-. After referring to provision of Rule 10 of CCR he submitted that appellant did not fall within the scope of Rule 10 of CCR as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that appellant wanted to amend DTA registration to include debonded EOU, which is located in adjacent plot within perimeter of DTA which was earlier separated by fencing. Also, the appellant provided re-defined boundaries as per amended registration. In our opinion, the appellant provided all possible disclosures in their application. Pursuant to this letter, the department issued amended central excise registration certificate on 11-03-2013. In this background, when the appellant made all disclosures in their application and amended central excise registration was issued, we do not find any merit in confirming the demand on allegation of non-registration. 4.2 We also find force in appellant s arguments that the department is taking contrary stand as at one hand it is denying credit on the ground that DTA excise registration does not bear address of debonded EOU but at the same time has accepted payment of central excise duty on the clearance made from the premises of EOU. 4.3 When the appellant provided re-defined boundaries for amended registration in their application and basis the said application revised excise registration was issued, merely non mentioning of the specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, short question that arises for consideration is, whether the authorities were justified in refusing to grant Cenvat credit to which the assessee was legally entitled to on the ground that he is not registered with the department. 5. We have heard the learned counsel for the parties. 6. The assessee is a 100% export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various services. According to the assessee a sum of Rs. 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund a accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that during conversion of unit from DTA to EOU or from EOU to DTA there is no bar on transfer of CENVAT credit. The ratio laid down by below mentioned decisions is applicable: GTN Exports Ltd V/s. Comm of C.Ex., Coimbatore 2009 (240) ELT 53 (Tri. Chennai): 11. The issues to be decided are : (i) The entitlement of EOU to take balance of credit relating to inputs/capital goods lying in the Cenvat account of the DTA on the date of its conversion to EOU; and (ii) Amount of duty to be paid on removal of inputs as such. As regards issue at (i), we find that as held in Order-in-Appeal No. 92/06, Rule 10 of Cenvat Credit Rules, 2004 did not prohibit availing by EOU of the balance credit at the time of conversion of DTA. Rule 10 of CCR '04 dealt with transitional credit in situations such as shifting of factory or change in ownership or sale, merger or amalgamation or lease. The claim of the appellant that the credit balance available related to inputs received on or after 6-9-04 is not contested. In any case, no provisions prohibited an EOU from availing balance of credit when the unit converted to EOU from DTA. EOU also manufactured goods for DTA clearances. Therefore GTN s claim in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries (supra) and GTN Exports Ltd. (supra) have been accepted by the Revenue. It is also not in dispute that appeal filed by the Revenue against the decision of the CESTAT in the case of Ashok Iron Steel Fabricators (supra) has been dismissed by the Apex Court. In this view of the matter, in our opinion, no fault can be found with the decision of the CESTAT. Hence, the appeal is dismissed with no order as to costs. 4.9 While the aforesaid judgments deal with scenarios of conversion of DTA to EOU and the issue at hand pertains to conversion of EOU to DTA, we observe that there is no provisions under the law which bars debonded EOU unit to avail credit in its DTA unit post conversion. Therefore, the ratio of the aforesaid judgments is applicable in the present case. Accordingly, in our view, demand of Rs. 4,21,16,159/-, cannot sustain. 4.10 The third issue of transfer of PLA balance of Rs. 7,89,895/-, of debonded EOU unit to DTA unit is concerned we find force in appellant s arguments that when there is no dispute on availability of PLA balance and when due to EOU merger into DTA unit, EOU and DTA becomes one entity and the said one entity is legally entitled to use the unutilized PLA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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